[Cite as State v. Davenport, 2011-Ohio-4635.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95911
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DWAYNE DAVENPORT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-520917
BEFORE: Blackmon, P.J., Celebrezze, J., and Jones, J.
RELEASED AND JOURNALIZED: September 15, 2011
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-i-
ATTORNEY FOR APPELLANT
Patrick E. Talty
20325 Center Ridge Road
Suite 512
Rocky River, Ohio 44116-4386
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Lauren Bell
Aaron Brockler
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Dwayne Davenport appeals his convictions and assigns
the following errors for our review:
“I. Defendant-Appellant was denied equal protection
under the law when the judge of the trial court improperly
denied defendant-appellant’s right to exercise a
peremptory challenge to a juror.”
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“II. The trial court erred in denying
defendant-appellant’s motion for acquittal where the
evidence is not sufficient to support conviction.”
“III. The verdict of the jury finding defendant-appellant
guilty is against the manifest weight of the evidence.”
{¶ 2} Having reviewed the record and pertinent law, we affirm
Davenport’s convictions. The apposite facts follow.
{¶ 3} On February 12, 2009, the Cuyahoga County Grand Jury indicted
Davenport with four counts of aggravated murder, with a felony murder
specification, one count of aggravated robbery, and one count of aggravated
burglary. All six counts had one and three-year firearm specification
attached. Davenport pleaded not guilty at his arraignment, several pretrials
were conducted, and a jury trial was scheduled. Prior to trial, the state
dismissed the felony murder specifications and one count of aggravated
murder.
Jury Trial
{¶ 4} At trial, the state presented the testimony of ten witnesses,
including Roderick Hairston, who testified that on January 16, 2009, he was
living at a boarding house in East Cleveland, Ohio, with three other boarders.
Hairston testified that boarders Omar Johnson and Charles Murphy
shared a bedroom, while boarders Michael Grisette and Hairston had their
own rooms.
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{¶ 5} Shortly before noon, Myron McClutchen contacted Hairston and
offered to purchase drugs, but Hairston refused because McClutchen owed
him $50 from the last transaction. Hairston testified that a few minutes
later, McClutchen and Davenport appeared at the boarding house and were
admitted by Johnson.
{¶ 6} Davenport pulled out a black semi-automatic handgun, stuck it in
Hairston’s face, and demanded money. As Hairston was in the process of
emptying his pockets, he noticed that a third individual, Tommie Adams, who
had a black revolver, was also in the house. Adams ordered Hairston to
hand over his “stash,” referring to his drugs, but he denied having any drugs.
{¶ 7} Adams ordered Hairston at gunpoint upstairs towards his
bedroom, while McClutchen and Davenport followed behind. Adams entered
the bedroom, but McClutchen and Davenport remained in the hallway.
While Adams was searching the bedroom, Hairston observed Davenport kick
open the door to Grisette’s room and fire a single shot into the room, at which
point, all three men ran out the house.
{¶ 8} Hairston subsequently alerted Johnson and Murphy that the men
had fled the house. Hairston testified that when they checked in Grisette’s
room, they found his dead body in a pool of blood.
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{¶ 9} Davenport’s codefendant, McClutchen testified that on January
16, 2009, he went to purchase drugs from Hairston, but Adams pulled out a
revolver and Davenport pulled out a “glock” and proceeded to rob Hairston.
McClutchen testified that Adams and Davenport forced Hairston at gunpoint
upstairs to his room. McClutchen testified that Davenport kicked open the
door to one of the bedrooms, which was occupied by a man with a walker, and
then fired into the room.
{¶ 10} McClutchen stated that they immediately fled after Davenport
fired into the bedroom. When the three met up later, Adams demanded to
know why Davenport had fired into the room, and Davenport responded that
he was going to shoot anything that moved.
{¶ 11} Testimony of Adams, Davenport’s second codefendant,
corroborated McClutchen’s testimony. Adams, Mclutchen, and Davenport
went to the boarding house to rob Hairston. While Adams was in Hairston’s
bedroom searching for the drugs, he heard a single gunshot. They
immediately fled and met up on the next street over. When Adams asked
Davenport why he had fired the shot, Davenport indicated that he was going
to shoot anything that moved.
{¶ 12} The jury found Davenport guilty of the lesser offense of murder,
in Count 1, with the one-and three-year specifications attached, and guilty of
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the remaining four counts as charged in the indictment. On October 4, 2010,
the trial court sentenced Davenport to an aggregate prison term of 25 years to
life. Davenport now appeals.
Peremptory Challenge
{¶ 13} In the first assigned error, Davenport argues the trial court
improperly denied his rights to exercise a peremptory challenge to a given
juror.
{¶ 14} In Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69, the United States Supreme Court held that purposeful
discrimination in the use of peremptory challenges to exclude members of a
minority group violates the Equal Protection Clause of the United States
Constitution.
{¶ 15} Trial courts are to apply a three-step procedure for evaluating
claims of racial discrimination in peremptory challenges. State v. Frazier, 115
Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶64. First, the opponent of
the peremptory strike must make a prima facie case of racial discrimination.
Id. “To make a prima facie case of such purposeful discrimination, an accused
must demonstrate: (a) that members of a recognized racial group were
peremptorily challenged; and (b) that the facts and any other relevant
circumstances raise an inference that the prosecutor used the peremptory
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challenges to exclude jurors on account of their race.” State v. Hill (1995), 73
Ohio St.3d 433, 444-445, 653 N.E.2d 271.
{¶ 16} Second, if the trial court finds that the opponent has set forth a
prima facie case, then the proponent of the strike must come forward with a
racially neutral explanation for the strike. State v. Bryan, 101 Ohio St.3d 272,
2004-Ohio-971, 804 N.E.2d 433, ¶106. The explanation need not rise to the
level justifying exercise of a challenge for cause. Id.
{¶ 17} Third, “if the proponent puts forward a racially neutral
explanation, the trial court must decide, on the basis of all the circumstances,
whether the opponent has proved purposeful racial discrimination.” State v.
Herring, 94 Ohio St.3d 246, 256, 2002-Ohio-796, 762 N.E.2d 940. This final
step involves evaluating “the persuasiveness of the justification” proffered by
the prosecutor, but “the ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of the strike.”
Collins v. Rice (2006), 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824,
quoting Purkett v. Elem (1995), 514 U.S. 765, 768, 115 S.Ct. 1769, 131
L.Ed.2d 834 (per curiam). The trial court, however, may not simply accept a
proffered race-neutral reason at face value; it must examine the prosecutor’s
challenges in context to ensure that the reason is not merely pretextual.
Frazier, 115 Ohio St.3d at ¶65.
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{¶ 18} In reviewing a trial court’s ruling on a Batson challenge, we will
not disturb the court’s decision unless we find it to be clearly erroneous. See
State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶61. This
deferential standard arises from the fact that step three of the Batson inquiry
turns largely on the evaluation of credibility by the trial court. See Herring,
94 Ohio St.3d at 252,762 N.E.2d 940, citing Batson, 476 U.S. at 98.
{¶ 19} In the instant case, during voir dire, the following exchange took
place:
“Ms. Ranke: * * * At this time the defense would like to
thank and excuse juror number 7.
“The Court: Thank you, ma’am. Actually I want you to take
a seat for a minute. I want to see counsel at
sidebar.
“* * *
“The Court: Let’s talk about this on the record. The reason
I called you up to sidebar is we’re going
through challenges and obviously I’m keeping
track and I noticed that all three of defense
challenges have been white, and I’ve asked for a
neutral reason. As you know Batson works
both directions. Not just about the State and
not just about one race. It’s about a fair
seating of the jury. I’m not satisfied with the
explanation I heard at sidebar so I want to give
defense counsel the opportunity to state their
reason clearly on the record and then give the
State an opportunity to respond before I decide.
Go ahead Ms. Ranke.
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“Ms. Ranke: * * * As I indicated, she has a brother - - I did
not have my notes when I was talking at side
bar. She has a brother who is a police officer
in Stow. So that shows at least a relationship
with law enforcement. That certainly does not
mean she can’t be fair but certainly that is a
concern to my client. Secondly, she has a
brother and a son, that although she doesn’t
own firearms that indicated that they both
owned guns. I believe her body language in
answering questions both to the court, both to
the State and to defense counsel indicated a
very rote yes or no. * * * I believe her body
language indicated that she was not necessarily
giving full answers to the questions.” Tr.
526-528.
{¶ 20} The above exchange involves the first and second steps of the
three-step procedure regarding the Batson analysis. First, the trial court
noted that all three of defense counsel’s peremptory challenges were white
jurors. Second, defense counsel suggested that juror number 7 was excused
because of her connection to law enforcement, family members’ ownership of
guns, and evasive answers.
{¶ 21} In the third step of the Batson analysis, the court must decide
whether the neutral explanation offered by the proponent of the strike is
credible or instead is a “pretext” for unconstitutional discrimination. State v.
Gowdy (2000), 88 Ohio St.3d 387, 727 N.E.2d 579, citing State v. Hernandez
(1992), 63 Ohio St.3d 577, 589 N.E.2d 1310.
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{¶ 22} In rejecting defense counsel’s explanation, the trial court stated
in pertinent part as follows:
“I will just say that I don’t think her answers were at all
evasive or that she was disinterested. I think she was
just one of those grandmas that’s very crazy about a
grandchild. I didn’t see anything about her that
indicated she wouldn’t pay attention. She is also not the
only juror left who has some familiarity with guns. * * *
Well the question is on this juror is there sufficient race
neutral reason, and I don’t believe that there is. So the
challenge will not stand. She will remain. Okay. * * * You
can exercise the challenge of whoever you choose, but
you’re going to have to give me a sufficient race neutral
reason. It may be that you’ll challenge another white
juror, and I’ll be satisfied with the explanation. I’m not
satisfied with this.” Tr. 529-532.
{¶ 23} In the typical peremptory challenge inquiry, the decisive question
will be whether counsel’s race-neutral-explanation for a peremptory challenge
should be believed. There will seldom be much evidence bearing on that
issue, and the best evidence often will be the demeanor of the attorney who
exercises the challenge. State v. Bolton, Cuyahoga App. No. 81638,
2003-Ohio-3020.
{¶ 24} Further, as with the state of mind of a juror, evaluation of
counsel’s state of mind based on demeanor and credibility lies peculiarly
within a trial judge’s province. Id. Here, despite defense counsel’s proffer
that the prospective juror was being evasive and appeared disinterested, the
trial court specifically stated that it disagreed with that assessment. The
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trial court had the opportunity to observe the prospective juror’s body
language and voice inflection and reached a different conclusion from defense
counsel.
{¶ 25} We recognize that a suggestion that a juror was evasive or
disinterested has been held to be a sufficient race neutral reason to survive a
Batson challenge. See State v. Boynton, Cuyahoga App. No. 93598,
2010-Ohio-4248. However, in the instant case, the trial court made a specific
determination that defense counsel’s explanation was pretextual.
Consequently, we affirm the trial court’s decision disallowing defense
counsel’s peremptory challenge of juror number 7. Accordingly, we overrule
the first assigned error.
Sufficiency of Evidence
{¶ 26} In the second assigned error, Davenport argues the evidence was
insufficient to support his convictions.
{¶ 27} Crim.R. 29 mandates that the trial court issue a judgment of
acquittal where the state’s evidence is insufficient to sustain a conviction for
the offense. Crim.R. 29(A) and sufficiency of evidence review require the same
analysis. State v. Mitchell, Cuyahoga App. No. 95095, 2011-Ohio-1241,
citing State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.
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{¶ 28} In analyzing the sufficiency issue, the reviewing court must view
the evidence “in the light most favorable to the prosecution” and ask whether
“any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560; State v. Jenks (1991), 61 Ohio St.3d 259, 574
N.E.2d 492, paragraph two of the syllabus; State v. Carter (1995), 72 Ohio
St.3d 545, 651 N.E.2d 965.
{¶ 29} In the instant case, the victim, Hairston, testified that he was
robbed at gunpoint by Davenport, that he observed Davenport kick open the
door to Grisette’s bedroom and fire a single shot into the room. Also, both
Adams and McClutchen, Davenport’s codefendants, testified that they went
to the boarding house to rob Hairston.
{¶ 30} In addition, both codefendants testified that while the robbery
was in progress, Davenport kicked open Grisette’s bedroom door and fired a
single shot into the room. Further, both codefendants testified that after
they fled the scene, they inquired of Davenport why he had fired into room,
and he indicated that he was going to shoot anything that moved. Finally,
the evidence indicates that Grisette’s death resulted from a single gunshot
wound.
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{¶ 31} After reviewing the evidence in a light most favorable to the
prosecution, we conclude that any rational trier of fact could have found that
the essential elements of the charged crimes were proven beyond a reasonable
doubt. Consequently, the trial court properly denied Davenport’s motion for
acquittal. Accordingly, we overrule the second assigned error.
Manifest Weight of the Evidence
{¶ 32} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
N.E.2d 1264, the Ohio Supreme Court addressed the standard of review for a
criminal manifest weight challenge, as follows:
“The criminal manifest-weight-of-the-evidence standard
was explained in State v. Thompkins, 78 Ohio St.3d 380,
1997–Ohio–52, 678 N.E.2d 541. In Thompkins, the court
distinguished between sufficiency of the evidence and
manifest weight of the evidence, finding that these
concepts differ both qualitatively and quantitatively. Id.
at 386, 678 N.E.2d 541. The court held that sufficiency of
the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a
matter of law, but weight of the evidence addresses the
evidence’s effect of inducing belief. Id. at 386–387, 678
N.E.2d 541. In other words, a reviewing court asks whose
evidence is more persuasive—the state’s or the
defendant’s? We went on to hold that although there may
be sufficient evidence to support a judgment, it could
nevertheless be against the manifest weight of the
evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of
appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the
appellate court sits as a “thirteenth juror” and disagrees
with the factfinder’s resolution of the conflicting
testimony.’ Id. at 387, 678 N.E.2d 541, citing Tibbs v.
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Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d
652.”
{¶ 33} In this assigned error, Davenport argues the jury lost its way as
to the convictions. Specifically, Davenport argues the state presented
conflicting and inconsistent testimonies, lacking in credibility. However,
the determination of weight and credibility of the evidence is for the trier of
fact. State v. Chandler, 10th Dist. No. 05AP–415, 2006-Ohio-2070, citing State
v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. The rationale is that the
trier of fact is in the best position to take into account inconsistencies, along
with the witnesses’ manner and demeanor, and determine whether the
witnesses’ testimonies are credible. State v. Williams, 10th Dist. No.
02AP–35, 2002-Ohio-4503.
{¶ 34} Here, given the testimony as previously discussed, we are not
disposed to reach such a conclusion. After reviewing the entire record, we
cannot conclude that any of the evidence weighs heavily against the jury’s
finding of guilt. Accordingly, we overrule the third assigned error.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. The defendant’s conviction having been affirmed,
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any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, J., CONCUR